Adams v Kennedy & Ors [2000] NSWCA 152 | Case summary

1 PRIESTLEY JA: Introduction Mr J. Adams, as plaintiff, brought an action in the District Court against Mr G. Kennedy (first defendant), Mr A. Bordin (second defendant), Mr R. Krause (third defendant) and the State of New South Wales (fourth defendant) claiming that on 22 August 1994 the first three defendants trespassed upon premises being his home and seized and assaulted and beat him. He also alleged that the first three defendants falsely imprisoned him. The first three defendants were constables of police. The fourth defendant was alleged by the plaintiff to be vicariously liable for the conduct of the first three defendants. The plaintiff claimed damages including an alleged loss of future earning capacity. He also claimed aggravated and exemplary damages, and interest. 2 The plaintiff's action was heard by Delaney DCJ, who gave his decision on 4 December 1998. He found the defendants guilty of trespass to the person but not of false imprisonment. He awarded $50,000 general damages and $10,000 for the plaintiff's reduced earning capacity. He refused to award exemplary damages. He noted that no submission had been made that the fourth defendant was not vicariously liable for the acts of the first three defendants. He entered judgment against all four defendants in the sum of $60,000. 3 Both the plaintiff and the defendants sought leave to appeal to this court. It was granted to the plaintiff but not to the defendants. The appeal accordingly proceeded on this footing. 4 The basis of the plaintiff's appeal was that from the findings of fact made by the trial judge it necessarily followed that the plaintiff had been wrongfully imprisoned, that the judge was in error in not reaching that conclusion and that in the circumstances as found by the trial judge, exemplary damages should have been awarded. 5 The events which were the subject of the plaintiff's case led also to the bringing of a separate and largely parallel action by Ms S. Lee, his defacto wife, against the same four defendants. This action was heard by Delaney DCJ at the same time as Mr Adams's action. It was agreed that in regard to liability the evidence in each action should also be evidence in the other. Ms Lee obtained judgment, in the sum of $40,000, against the second, third and fourth defendants. She also was given leave to appeal to this court. Her appeal was heard together with Mr Adams's appeal, by consent of the parties. I will deal with her appeal separately. 6 Nine witnesses gave evidence. These were the two plaintiffs, their son, a solicitor who represented them at the police station on the day they were taken there, the first three defendants and a married couple who lived within eyeshot of the premises where the plaintiffs lived. 7 Much of the evidence was conflicting. The trial judge resolved the principal issues by his factual findings. These were not disputed in the appeal, and this court must therefore take them as the relevant facts for purposes of the appeal. 8 Factual findings at trial. What follows is taken entirely from the trial judge's factual findings, either by way of summary or direct quotation. 9 The plaintiff (Mr Adams) lived with his family at 10 Palm Tree Crescent, Bangalow. On the afternoon of 22 August 1994 he was standing on his front lawn. Constable Kennedy pulled up in a police vehicle and spoke to him. The plaintiff then had a gardening knife in his hand. Constable Kennedy asked the plaintiff questions about a motor vehicle accident which had happened earlier that day. In aggressive and coarse language the plaintiff refused to answer questions, complained the police were continually harassing him and told Constable Kennedy to go away. The trial judge did not accept Constable Kennedy's evidence about this encounter. He said Constable Kennedy: " did not tell the whole truth about the incident on this day. I think that he believed that because of the verbally aggressive response of the plaintiff that this was a matter which he needed to do something about. What he did was to allege that the plaintiff threatened him with a knife. ... I believe that he, for whatever reason, made up the story about a knife and the intent of the threat. He returned to the police station to determine what he would do about it, rather than confronting the plaintiff. I do not think and I do not find that the plaintiff at any time threatened Constable Kennedy with anything other than basically telling him that he did not think that the police were kind to him generally and that he was reluctant to cooperate with them in any regard. " 10 Some time later the same afternoon, Constable Kennedy returned with Constables Bordin and Krause. They went to the door of the plaintiff's premises. Constable Krause said they were there to arrest him. No-one told him what he was going to be arrested for. The trial judge thought that the evidence of the first three defendants to the contrary was a fabrication. The plaintiff resisted arrest. A melee developed. 11 As to what happened in the melee, the trial judge made no detailed findings. He said it was a very difficult matter to determine. But, he said, emerging out of the evidence about the melee was one matter which he accepted without the slightest hesitation. This was that the plaintiff was eventually handcuffed, with his hands behind his back, by Constable Kennedy. Constable Kennedy took the plaintiff's arms while the plaintiff was on the ground and wrenched one arm in the course of seeking to handcuff him. The trial judge accepted that Constable Kennedy, in the course of attempting to handcuff the plaintiff twisted his arm as a result of which the plaintiff suffered a serious injury. 12 After being handcuffed the plaintiff was taken to the police station, put in the cells and interviewed. Then, the trial judge found he " was given after a lengthy period of delay some legal advice after what I find to be an extraordinary exchange between the police and the legal practitioner who gave evidence in this case who sought merely to come to give some advice to the plaintiff. The degree to which and the ferocity of the attack on that legal adviser indicated to me the way in which the police approached this case generally. Constable Kennedy I find substantially over-reacted to his perception and observations of the events at the house earlier that afternoon. He encouraged and co-opted Constables Krause and Bordin to come to the premises and eventually become involved in this most unsavoury, quite brutal incident, where not only the plaintiff, but the plaintiff's children, Miss Lee, and other people were involved and there was a melee with people striking each other, running about, screaming and shouting. On my finding this all came about because of Constable Kennedy. It may well have been, I do not know, because there was no evidence of it, that there was something in the background whereby they knew the plaintiff, that is Constables Krause and Bordin knew the plaintiff, Constable Kennedy had never met him before, and that led perhaps, together with Constable Kennedy's recounting of the story, to them returning to these premises. " 13 The police officers gave evidence to suggest that the shoulder injury suffered by the plaintiff was not caused by the way in which he was handcuffed. The trial judge however found that "the manner in which Constable Kennedy sought to place the handcuffs on the plaintiff was such that it was a material and in fact the sole cause of the injuries ...". The evidence by Constable Krause to a quite different effect was "a fabrication". After further examination of the evidence, the trial judge concluded that " I accept the plaintiff generally about the way in which he was treated on this day ... I reject the police evidence and I accept the evidence of the plaintiff. " 14 Medical evidence accepted by the trial judge explained how the handcuffing of the plaintiff behind his back while he was resisting with maximum effort caused massive rotator cuff tendon ruptures which led to a wasting of the trapezius muscle and all the rotator cuff muscles causing a marked restriction in range of movement. 15 Legal findings. A principal finding of the trial judge debated in the appeal was that the arrest of the plaintiff had not been unlawful. The trial judge thought this was the position, notwithstanding his finding that the plaintiff was never told what he was going to be arrested for, because he accepted " that Constable Kennedy, however wrong he may have been, had a belief at the time that he undertook this activity that he had been technically assaulted by the plaintiff on the front lawn of his house. " 16 The arguments in the appeal. Was the arrest unlawful ? For the plaintiff it was submitted that it necessarily followed from the trial judge's findings that the arrest of the plaintiff had been unlawful. One basis for this submission was the trial judge's finding that the plaintiff was not told by the police constables what he was going to be arrested for. It was said that the submissions stated in Christie v Leachinsky (1947) AC 573 meant that it followed from this fact, in the circumstances of the case, that the arrest had been unlawful. 17 In Christie, Viscount Simon, after referring to decisions and authorities going as far back as the first edition of Burn's Justice of the Peace in 1755, said: " The above citations, and others which are referred to by my noble and learned friend, Lord du Parcq, seem to me to establish the following propositions. ( 1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter. These principles equally apply to a private person who arrests on suspicion. If a policeman who entertained a reasonable suspicion that X has committed a felony were at liberty to arrest him and march him off to a police station without giving any explanation of why he was doing this, the prima facie right of personal liberty would be gravely infringed. " (at 587-8) 18 Lord Simonds spoke to the same effect: " Putting first things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested? ... Is citizen A bound to submit unresistingly to arrest by citizen B in ignorance of the charge made against him? I think, my Lords, that cannot be the law of England. Blind, unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish on English soil. I would, therefore, submit the general proposition that it is a condition of lawful arrest that the man arrested should be entitled to know why he is arrested, and then, since the affairs of life seldom admit an absolute standard or an unqualified proposition, see whether any qualification is of necessity imposed upon it. " (at 591-2) 19 A little later Lord Simonds cited with approval what had been said by Lord Cranworth in Hooper v Lane (1859) 6 HLC 443; 10 ER 1368, speaking of the obligation of the Sheriff when executing a writ of arrest for debt: " ... to make known the ground of the arrest, in order, among other reasons, that the person arrested may know whether he is or is not bound to submit to the arrest. " (at 592) 20 Lord Simonds remarked that what Lord Cranworth had said was "a clear illustration of the principle ... that if a man is to be deprived of his freedom he is entitled to know the reason why" (at 592). 21 Lord Simonds said (at 592-3) that the qualifications which he thought should be imposed upon the fundamental rule were: (a) an arrest would not be wrongful if the arresting constable told the person arrested that he was to be charged for one felony, say murder, notwithstanding that the person was subsequently charged with another felony, say manslaughter, so long as the arresting constable reasonably suspected that murder had been done; (b) there was no need to explain the reason of arrest if the arrested person was caught red-handed; (c) nor when it was important to secure a possibly violent criminal; (d) nor when a person was arrested and detained upon a stated charge of which the person was reasonably suspected, with a view to further investigation of a second charge. A little later he said that "the principle" which was "the heart of the matter" was that the arrested person was entitled to be told what was the act for which the arrest was made (at 593). 22 Lord du Parcq also accepted (at 598) the general rule which Lord Simon had quoted from Burn's Justice of the Peace (at 598) and that the general rule was subject to exceptions. He went on: " The principles ... follow from the governing rule of the common law that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance. " (at 598) 23 Later in his opinion, Lord du Parcq concisely stated two points directly relevant to the present case: " The omission to tell a person who is arrested at, or within a reasonable time of, the arrest with what offence he is charged cannot be regarded as a mere irregularity. Arrest and imprisonment, without a warrant, on a charge which does not justify arrest, are unlawful and, therefore, constitute false imprisonment ... " (at 600) 24 Each of Lords Simon, Simonds, and du Parcq based his statement of the common law concerning the obligation to notify an arrested person of the charge for which the arrest was made upon the common law as it stood at least from the 18th century. It would therefore be part of the common law received in New South Wales at or after settlement and regulated by the Australian Courts Act 1828 (9 Geo IV c. 83) which enacted that all laws and statutes in force within the realm of England on 25 July 1828 were to be applied in the administration of justice in the courts of New South Wales and Van Diemens Land so far as they could be applied within those colonies (s 24). 25 Also, Christie has been referred to in various Australian cases on the assumption that it is authoritative here: in New South Wales it was relied upon by Richardson J in McLachlan v Mesics (1965) 84 WN (Pt 1) NSW 25. His decision was reversed in the High Court, (1966) 116 CLR 340, but not for reasons which raised any question about the authority of Christie. In Victoria, McInerney J, in Lynch v Hargrave [1971] VR 99, assumed it was authoritative there. It was accepted as stating the common law in South Australia in R v Stafford (1976) 13 SASR 392; see also in South Australia, Warke v Daire (1983) 32 SASR 321, 8 A Crim R 254. Asche J assumed its validity in the Northern Territory in R v Parole Board Chairman (NT) (1986) 86 FLR 118. In the High Court, in Williams v R (1986) 161 CLR 278, it was accepted, although on a slightly different point, without question by Gibbs CJ (at 285), and by Wilson and Dawson JJ in their joint opinion (at 305). 26 It therefore seems clear that the common law stated in Christie is applicable in New South Wales. This would of course be subject to any statutory alteration, but the court's attention was not drawn to any directly relevant legislation, nor was any such alteration relied on. 27 Instead, the argument was that one or more of the exceptions to the general rule recognised by Christie was applicable here. It was said that it must have been reasonably apparent to the plaintiff what he was being arrested for: see rule (3) set out in Lord Simon's reasons in Christie (par 17 above). It seems to me likely that the plaintiff must have thought he was being arrested for what had happened earlier between him and Constable Kennedy but, since on the judge's findings no offence had then been committed, and Constable Kennedy's belief to the contrary had no objective foundation and was unreasonable, the plaintiff could not have known "the general nature of the alleged offence" for which he was being arrested. At the least, as the trial judge found, "the plaintiff must have been in considerable doubt about what this was all about". These are circumstances of the very kind for which the basic rule was established, not the foundation for an exception to it. In my opinion this submission for the defendant fails. 28 A similar attempt was made to rely on the exception described in Lord Simon's rule (5) (par 17 above). It was said that the plaintiff had acted so quickly by slamming the door in response to Constable Krause's statement that he was under arrest that there had been no time for Constable Krause (or either of the other two constables) to add the words "for assault". To deal with the difficulty that the trial judge had made no such finding, it was argued that it must have been implicit in his reasoning, since he found that the arrest was not unlawful. However, it seems quite plain upon the judge's expressed reasons that his refusal to find the arrest was unlawful was based on his finding that Constable Kennedy had thought (although wrongly) that in the earlier exchange between him and the plaintiff, the plaintiff had committed an assault. It seems to me to be clear from the way in which the judge stated his findings that he had no intention of implying that Constable Krause (or either of the other two, for that matter), had been deprived of the opportunity of saying to the plaintiff that he had been arrested for assault rather than simply that he was being arrested, and that there was sufficient time for the additional, and important, two words to be spoken by any one of the constables who wished to do so. I therefore think that this submission also fails. 29 The conclusion on this aspect of the case is, as it seems to me, that, on the facts as found by the judge no exception to the general rule in Christie was made out, and unless the particular reason given by the judge for finding the arrest not to have been unlawful is found to be valid, then the general rule in Christie is applicable to the case. 30 I have already stated what the judge's specific reason was for saying the arrest was not unlawful. I respectfully do not agree with his Honour that Constable Kennedy's unjustified belief that a technical assault had been committed could of itself make the arrest lawful. On the trial judge's findings, no offence had been committed by the plaintiff. There was therefore no reason in law justifying his being charged with anything, or arrested. If Constable Kennedy had a reasonable suspicion that an offence had been committed, that would have justified the charging of the plaintiff with that offence, but even then, as the only offence he had (wrongly) persuaded himself had been committed was a technical assault, the authorities show that the proper practice would have been for the plaintiff to have been charged by summons rather than arrested. In the absence, however, of a reasonable suspicion (and the trial judge's findings clearly negated any such) the arrest in the circumstances could not be a lawful one. 31 Trespass to property. Presumably because of his finding that the arrest was not unlawful, the trial judge did not discuss the claim of trespass to property. Involved in the idea of lawful arrest may have been the idea that forcible entry to effect that arrest was justified by the rules discussed by this court in Lippl v Haines (1989) 18 NSWLR 620, which indeed, the defendants sought to rely on in the appeal. However, once it is recognised that there was no basis for a lawful arrest in the circumstances of the present case, because any belief Constable Kennedy had about an offence having been committed was not based on reasonable grounds, then there is no room for any of the relevant rules in Lippl to apply. In short, once it is recognised that the arrest was unlawful, it follows that the forcible entry to the premises was a trespass to property. 32 Conclusions on causes of action. For the reasons I have given, in my opinion the trial judge's findings of fact not only supported his conclusion that there had been an unlawful assault upon the plaintiff (trespass to person) but also required the legal conclusions that additionally there had been trespass to his property and an unlawful arrest constituting the starting point of a false imprisonment. 33 Damages. The damages awarded by the trial judge for the cause of action which he found to be established seem to me to have been within the bounds of reasonableness in the circumstances. I would not interfere with them. 34 However, when the full implications of the trial judge's factual findings are recognised as leading to the conclusion that the other causes of action mentioned above were also established against the defendants, the matter of damages for those causes of action and in particular the question whether exemplary damages should be awarded, require consideration. 35 I do not think I need go further for the main part of this consideration than to the decision of the High Court in Lamb v Cotogno (1987) 164 CLR 1. The subject of exemplary damages was extensively discussed in the joint opinion published in that case by Mason CJ and Brennan, Deane, Dawson and Gaudron JJ. It seems to me to follow from what the court said, particularly in the passage commencing with the reference to Lord Devlin's explanation of some aspects of the subject in Rookes v Arnard at p 8, running through to near the bottom of p 10, that the conduct of the defendants in the present case, as found by the trial judge, should have led to an award of exemplary damages in regard to each of the causes of action which that fact finding established, that is the trespass to property, the trespass to the person and the false imprisonment. There is little guidance from the reported decisions on what appropriate amounts of exemplary damages in the present case would be; I do not think the position in this respect has materially changed since I discussed a slightly different aspect of it in The Commonwealth of Australia v Murray (1988) Aust Torts Reports [80-207], 68038 at 68052. As with Murray's case, so with the present one, the question of damages has to be left to the good sense of the court, with the only assistance to the court in its decision being the somewhat opaque rule that the damages must not be out of all proportion in the circumstances. 36 In the present case, although strictly it would be proper to award a separate amount for each cause of action, it seems to me that since the different causes of action arose out of the one series of closely connected events, it is appropriate to award one aggregate figure in respect of all the causes of action. That figure should indicate my view that the conduct of the defendants was reprehensible, mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen. In my assessment the appropriate assessment should be fixed at the aggregate sum of $100,000. 37 In my opinion therefore the judgment of the trial judge should be set aside and instead there should be judgment for the plaintiff for $160,000, being the sum of $50,000 general damages and $10,000 for the plaintiff's reduced earning capacity as assessed by the judge, and a further amount of $100,000 exemplary damages for the causes of action established by the trial judge's factual findings. 38 I note that there were a number of submissions put to the court on behalf of the defendants with which I have not dealt. These would only have been relevant had my opinion been different about the effect of the trial judge's factual findings. I have dealt only with the submissions relevant to the view I have taken of those findings and what seem to me to be their necessary legal consequences. 39 At the conclusion of the argument, the court was asked not to make any costs orders consequential on whatever conclusions the court arrived at before the parties had an opportunity to make submissions to the court as to costs in light of the court's decision. Accordingly, I propose that the court make orders immediately in accordance with the conclusions I have already expressed and at the same time require the parties to file any written submissions on costs they wish to put to the court within seven days of the publication of the court's reasons and the making of the proposed orders. 40 SHELLER JA: I agree with Priestley JA. 41 BEAZLEY JA: I agree with Priestley JA ***********

Adams v Kennedy & Ors

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Judgment (8 paragraphs)

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Cited By (33)